From Cigarettes to Alcohol: The Next Step in Hedonic Product Liability?

Abstract

Twenty-five years ago, it looked as if there would be no stop to the expansion of products liability. Imputed knowledge tests imposed on manufacturers liability for harms that they could not have foreseen. Some scholars called for broad enterprise liability that would impose on manufacturers liability for all productrelated injury. But, in the early 1980's, courts said "enough." In Professors Henderson and Twerski's metaphor, after seventy years of expanding the products liability frontier, courts halted the wagon trains, and, in many cases, pulled back.

In the last year or so, cigarette litigation has been one of the few areas where there has been signs of expanded products liability. The purpose of this conference is to explore whether there will be doctrinal developments that flow from the tobacco litigation that might affect other products. Will other products follow the tobacco road? Put another way, is the success of the tobacco litigation rooted in characteristics of tobacco, characteristics which other products might share, or is it rooted merely in the deceptive behavior of tobacco officials over a period of time, deceptive behavior which will one day be merely a footnote to product liability history?

My task is to consider the possibilities of alcohol manufacturer liability in light of the tobacco cases. I will first explore the similarities and differences between alcohol and tobacco that might be relevant to the question whether alcohol manufacturers will suffer the same fate as tobacco manufacturers. Then I will consider whether the fact that both of them are what I have called "hedonic products"- products whose primary function is to provide pleasure - might lead to the imposition of stricter liability on them. Finally, I will suggest that what may be emerging is a new strict liability claim for bystanders who are injured by dangerous hedonic products.